EXHIBIT A

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Defendants Original Answer, Special Exceptions, Affirmative Defenses
and Motion To Abate Page 1
CAUSE 2014CCV-61240-4

EDWARD MOYA, IN THE COUNTY COURT
Plaintiff,

v. AT LAW NUMBER 4

ACE AMERICAN INSURANCE
COMPANY AND ESIS, INC., NUECES COUNTY, TEXAS
Defendants.

DEFENDANTS ORIGINAL ANSWER, SPECIAL EXCEPTIONS, AFFIRMATIVE
DEFENSES AND MOTION TO ABATE
COMES NOW, ACE American Insurance Company (ACE) and ESIS, Inc. (ESIS)
(collectively the Defendants) and file their Original Answer, Affirmative Defenses and Motion
to Abate to Plaintiffs Original Petition and respectfully state as follows:
GENERAL DENIAL
Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendants generally deny
each and every allegation pled by Plaintiff Edward Moya (Plaintiff) and all subsequent
amendments and supplements thereto, and require that Plaintiff proves same by the standard of
proof provided by the Constitution and laws of this State.
SPECIAL EXCEPTIONS
1. Defendants specially except to Plaintiffs pleadings in that Plaintiff has failed to
satisfy Texas Rule of Civil Procedure 47, in that he has not included within his pleading a
statement of the maximum amount of the damages sought. Defendants request that the Court
order the Plaintiff to amend his pleadings to so specify.
2. Defendants specially except to Plaintiffs Original Petition in that Plaintiff has
failed to plead sufficient facts to demonstrate that Defendants owed a duty to Plaintiff. More
specifically, Plaintiff apparently seeks UIM or UM coverage from Defendants and his pleadings
are deficient in the following ways:
AAIC 020
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Defendants Original Answer, Special Exceptions, Affirmative Defenses
and Motion To Abate Page 2
a. First, in order to recover UIM or UM coverage, Plaintiff must plead and
prove that he is an insured under Policy number H08578254 (Policy) and that he is
entitled to payment under the Policy. There are no facts alleged that demonstrate why
Plaintiff is an insured under the policy. What is more, Plaintiff has failed to plead
sufficient facts demonstrating that ACE or ESIS owed him, much less violated, any
common law or statutory duty of good faith and fair dealing.
b. Second, in a UM/UIM matter, assuming that Plaintiff can demonstrate that
he is an insured under the Policy, he must then demonstrate the amount due under the
Policy, which amount is reduced by the amount recovered or recoverable from the insurer
of the underinsured motor vehicle. A UIM insurer has no contractual duty to pay benefits
until the liability of the other motorist and the amount of damages suffered by the insured
are determined. Again, there are no facts alleged that demonstrate that Ms. Benavides
liability has been established or a determination of the amount of the damages allegedly
suffered by Plaintiff. Third, third party tortfeasor (Ms. Benavides) is only underinsured if
the available proceeds of her liability insurance are insufficient to compensate for the
injured party's actual damages. There are no allegations supporting that Ms. Benavides
liability insurance is insufficient to compensate Plaintiff for his determined damages. In
summary, in order to recover UIM benefits, Plaintiff must establish that he had UIM
coverage, Ms. Benavides negligence proximately caused his damages and the amount of
his damages, and Ms. Benavides was underinsured.
c. Defendants specially except to Plaintiffs Petition because Plaintiff has not
plead the date or dates on which Defendants allegedly failed to act in accordance with
Plaintiffs requests or demands.
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Defendants Original Answer, Special Exceptions, Affirmative Defenses
and Motion To Abate Page 3
Because Plaintiff has not plead any of these elements, Defendants specially except to
Plaintiffs Original Petition and pray that the Court order Plaintiff to re-plead his Petition
alleging facts that eliminate the deficiencies set forth in paragraphs 1. and 2. or, in the event
Plaintiff does not replead within seven (7) days of any order of the Court to do so, dismiss this
Lawsuit.
AFFIRMATIVE DEFENSES
1. Defendants affirmatively assert that all conditions precedent have not been
satisfied, including but not limited to a finding of negligence by the driver of the vehicle,
Viktoria Benavides, who allegedly struck Plaintiff Edward Moya from behind and the amount of
the damages, if any. Consequently, there are no findings or conclusions of law that Ms.
Benavides is liable for the incident that forms the basis of this lawsuit, that there are any
damages proximately caused by the incident, that Plaintiff is underinsured or uninsured motorist
under the Policy, or that there is any UM/UIM coverage due Plaintiff.
2. Defendants affirmatively assert the Plaintiffs claims are barred, in whole or in
part, by the applicable statute of limitations.
3. Defendants affirmatively assert that settlement of the Plaintiffs claim against
Viktoria Benavides was without the consent of AAIC and without examination of Ms.
Benavides ability to pay a judgment in excess of her automobile liability insurance. As such,
Plaintiff has violated a term of the insurance policy and AAIC has been prejudiced by the
conduct of Plaintiff.
4. Defendants affirmatively deny any and all claims by Plaintiff that either
Defendant engaged in bad faith or extra-contractual conduct. At the most, if any duties were
owed, which Defendants deny, Defendants assert that this matter involves a bona fide dispute.
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Defendants Original Answer, Special Exceptions, Affirmative Defenses
and Motion To Abate Page 4
MOTION TO ABATE
1. Plaintiff asserts extra-contractual damages against Defendants. In a case where an
insured asserts a claim for uninsured/underinsured benefits, abatement of the extra-contractual
claims is required in most instances. See In re United Fire Lloyds, 327 S.W.3d 250, 257
(Tex.App.-San Antonio 2010, orig. proceeding); U.S. Fire Insurance Co. v. Hon. Richard
Millard, 847 S.W.2d 668, 675 (Tex.App.-Houston [1st Dist.] 1993, orig. proceeding).
Abatement is required because of the unique nature of an uninsured/underinsured case. In such a
case, an insurer's contractual duty to pay damages to an insured arises only if the insured is
legally entitled to recover from the uninsured/underinsured motorist. See Brainard v. Trinity
Universal Ins. Co., 216 S.W.3d 809, 815 (Tex.2006), citing Henson v. S. Farm Bureau Cas. Ins.
Co., 17 S.W.3d 652, 653-54 (Tex.2000).
2. An insured is legally entitled to recover from the uninsured/underinsured
motorist only if the insured (in this case allegedly the Plaintiff) establishes the liability and
underinsured status of the other motorist and the amount of damages suffered by the insured. Id.,
citing Henson, 17 S.W.3d at 653-54. If an insured is unable to so establish, an insurer should
not be required to put forth the effort and expense of conducting discovery, preparing for a trial,
and conducting voir dire on bad faith claims that could be rendered moot by the portion of the
trial relating to UIM benefits. In re United Fire Lloyds, 327 S.W.3d at 256. Texas insurance
law generally conditions recovery for bad faith and extracontractual claims on a recovery for
breach of the insurance contract itself. Smith v. Allstate Ins., No. H-03-0651, 2007 WL 677992,
at *5 (S.D.Tex. Feb. 27, 2007), citing Progressive County Mut. Ins. Co. v. Boyd, 177 S.W.3d
919, 922 (Tex.2005); Liberty Nat'l Fire Ins. v. Akin, 927 S.W.2d 627, 629 (Tex.1996).
3. There has been no judicial determination in this case that the underinsured
motorist who struck Plaintiff was both at fault and underinsured. Because no such determination
AAIC 023
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Defendants Original Answer, Special Exceptions, Affirmative Defenses
and Motion To Abate Page 5
has been made, it has not been established that Plaintiff is legally entitled to recover from the
underinsured motorist. Until Plaintiff establishes that he is legally entitled to recover from the
underinsured motorist who struck him, AAIC is under no contractual duty to pay
uninsured/underinsured benefits to Plaintiff. ESIS has no contractual or other obligation or duty
to Plaintiff as it is merely the third party administrator for the Policy.
Accordingly, abatement of Plaintiffs extra-contractual claims is required.
WHEREFORE, Defendants ACE American Insurance Company and ESIS, Inc.
respectfully pray that the court abate Plaintiff Edward Moyas extra-contractual claims, the Court
order Plaintiff to re-plead his Petition to satisfy the deficiencies set forth in Defendants Special
Exceptions, or in the alternative dismiss the lawsuit should Plaintiff fail to re-plead, and that
upon final hearing hereof, that Plaintiff take nothing and the Court enter judgment against
Plaintiff and in favor of Defendants, and that the Defendants recover their costs, fees, expenses,
and for such other and further relief, both at law and in equity, to which the Defendants may
justly be entitled.

Respectfully submitted,


_________________________________
Alicia G. Curran
State Bar No. 12587500

COZEN OCONNOR
1717 Main Street, Suite 3400
Dallas, Texas 75201-7335
Telephone: (214) 462-3000
Facsimile: (214) 462-3299
ATTORNEYS FOR DEFENDANTS
ACE AMERICAN INSURANCE
COMPANY AND ESIS, INC.

AAIC 024
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Defendants Original Answer, Special Exceptions, Affirmative Defenses
and Motion To Abate Page 6
CERTIFICATE OF SERVICE

I hereby certify that on this 21
st
day of J uly, 2014, a true and correct copy of the above
and foregoing was sent to counsel of record, via certified mail/return receipt requested as
follows:

Thomas J . Henry
J . Scott Frederick
Law Offices of Thomas J . Henry
521 Starr Street
Corpus Christi, Texas 78401
Attorneys for Plaintiff


Alicia G. Curran
LEGAL\19564814\1 00011.0020.000/352251.000
AAIC 025
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Proof of Submission
Submission ID: 1890400
Submission Date and Time: 7/21/2014 2:02:39 PM
Case Title: Eda!d Mo"a #$ %CE %me!i&an Insu!an&e Co$ and ESIS' In&$
(u!isdi&tion: )ue&es Count" * Count" Cou!t
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Case Cate+o!": Ci#il * ,t-e! Ci#il
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Pa"ment %&&ount: CMoone" %me/
Matte! )umbe!: 302201
Cause )o: 2014CC1*21240*4
%tto!ne": %li&ia 3 Cu!!an
4ile!: 5onnie 6am.ton
Case Information
Party Type Name Our Client
Plainti77 Eda!d Mo"a )o
De7endant %&e %me!i&an Insu!an&e Com.an" 8es
De7endant ESIS In& 8es
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Notes
Page 1 of 1 FileTime - View Submission
7/22/2014 file:///C:/Users/lwest/!!"ata/#o$al/%i$rosoft/&in'ows/Tem!orar()20*nternet)20Files+++
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